Friday, May 4, 2012

A Bond Sequel?

No, this post isn’t about Daniel Craig dusting off his tuxedo (although apparently another installment of that Bond series is scheduled for a November 2012 release). This is a follow up to last June’s Supreme Court decision in Bond v. United States, 131 S. Ct. 2355 (2011), covered earlier here, here, and here.

The facts of the case are intriguing. See, e.g., 131 S. Ct. at 2360 (“After discovering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge.”). The Supreme Court held that Bond had standing to challenge her conviction under 18 U.S.C. § 229, a statute implementing the 1993 Chemical Weapons Convention, as exceeding Congress’s power and violating the Tenth Amendment. So the case went back to the Third Circuit to consider the merits of her constitutional challenge, which is interesting in its own right. Yesterday, the Third Circuit issued its decision on remand. From the introduction to Judge Jordan's opinion of the court:

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that “there can be no dispute about the validity of [a] statute” that implements a valid treaty, 252 U.S. at 432, we will affirm Bond’s conviction.

Judge Jordan notes that “[t]he decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse’s revenge on her rival is, to be polite, a puzzling use of the federal government’s power.” But he concludes: “In short, because the Convention pertains to the proliferation and use of chemical weapons, which are matters plainly relating to war and peace, we think it clear that the Convention falls within the Treaty Power’s core. Consequently, we cannot say that the Act disrupts the balance of power between the federal government and the states, regardless of how it has been applied here.”

The other two judges on the panel each write separate concurring opinions. Judge Rendell writes to “consider two questions raised by her argument: What is legally wrong with the Act, which reaches Ms. Bond’s conduct?; and, What is wrong with the Act’s application to Ms. Bond, given the structure of federal-state relations? The answer to both is: Nothing.”

And from Judge Ambro's concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” 252 U.S. 416, 432 (1920). . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.


(Hat Tip: Howard Bashman)

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